After Heideman: Re-Defining “Evidence to the Contrary”

It is easier for a camel to go through the eye of the needle,
than for a rich man to enter the kingdom of God.
Matthew, 19:24


Patrick Ducharme
Patrick Ducharme

Matthew’s solemn admonition to the Christian believer about how difficult it is to achieve the heavenly kingdom may strike some as an odd passageway into a discussion of R. v. Heideman 1[1] , a relatively recent decision of the Court of Appeal for Ontario. But for me the Heideman case has such thundering implications that the scriptural analogy does not seem to be all that far-fetched. I tell you, sisters and brothers, that after Heideman it will be easier for defence counsel to go through the eye of the needle than to get an acquittal on the charge of exceeding the breathalyzer if the defence relies upon what is commonly referred to as “evidence to the contrary.”

The defence of “evidence to the contrary” invariably includes evidence about how much alcohol the accused consumed and expert opinion evidence showing that his or her blood alcohol concentration level (“BAC”) at the time of driving was less than 80 milligrams in 100 milliliters of blood. This defence, often referred to in Ontario as the Carter 2[2] defence, has abided for nearly twenty years. Some of the hallowed principles set out in Carter include:

1[1] R. v. Heideman (2002), 168 C.C.C. (3d) 542 (Ont. C.A.) 2[2]0 R. v. Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.)

1. Evidence to the contrary is some evidence that tends to show an inaccuracy in the breathalyzer readings or in the manner of its operation;
2. In cases of evidence to the contrary, the trial judge would have to reject
the evidence of the accused or find that the defence evidence did not raise
a doubt as to the accuracy of blood or breath results from police testing;
3. Any evidence about how much alcohol the person tested had in fact consumed is relevant evidence and, if accepted, can raise a doubt about the accuracy of breathalyzer readings;
4. The accused is not obliged to speculate where the error might have occurred in the taking of the sample, the labeling or the testing;
5. When blood or breath testing does not reflect the consumption of alcohol testified to by the accused, then the accused, if believed, has raised a doubt about the accuracy of the reading, and it follows that there must have been a breakdown somewhere in the procedures followed in sampling and analyzing the accused’s blood or breath.

From a defence lawyer’s perspective, Carter was magical, brilliant, insightful. Heideman is, well, a prosecutor’s case. A prosecutor holding a certificate of analysis providing a BAC greater than 80 milligrams in 100 milliliters of blood and a copy of Heideman has very nearly a lay-down hand. The only way open to the defence is to produce evidence establishing a choice for the court. The required choice is to reject the evidence of the breathalyzer results, accept the evidence of the accused (and perhaps other defence witnesses in support) as to the accused’s consumption of alcohol, and accept the evidence of a toxicologist that the BAC at the material time was below .08. This strategy does not raise a doubt as to the accuracy of the police breathalyzer results.

Rather, it is clear, cogent evidence to support a finding of a BAC lower than .08.

After Heideman, however, the prosecutor wins if the defence evidence merely “tends to show” or “can show” or “possibly shows” or presents evidence that “bears onthe subject”, or even “probably shows” a BAC below .08. In fact, according to Heideman, if this is the best evidence the defence can muster, it does not qualify as evidence to the contrary within the meaning of section 258. Impaired and exceed trials have always been challenging for the defence. The eye of the needle just got narrower.

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After Heideman: Re-Defining “Evidence to the Contrary”, by Patrick J Ducharme